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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27168
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I was charged with buying and distribution of kratom

Resolved Question:

I was charged with the illigal buying and distribution of kratom to my wife. Never took it myself and had no idea the military says its illigal. Although its a general order that I could never find. I understand that I'm supposed to know all general orders but I'm really confused as to how its legal for me to be charged with something I never used and also never knew was illigal according to the army. Some added notes, The website I purchased it from advertised it as a herbal sleeping aid and natural pain killer. And I never brought it on post. We live and have always lived off post.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

You are really asking two separate questions

You are correct, a general order applies even if you do not have specific knowledge of it. So if they can prove you used this substance? They can prosecute you for that crime.

But that requires they prove that you used the substance.

You say you purchased this...did you actually ingest it? What evidence do they have that you did?
Customer: replied 1 year ago.
Never ingested it. They have no proof I did. The proof they have that I bought it came from a protection order hearing. My old room mate assulted my wife and she had a tro hearing. It came up that I bought it for her and the military used the transcrips from that hearing as proof I bought it. She won the case.
Expert:  P. Simmons replied 1 year ago.
Thank you

So what forum are they charging you at? Art 15? Court Martial?
Customer: replied 1 year ago.
I already accepted the field grade art15. But now they are using it as a chapter 14-12c commiting a serious offence.
Expert:  P. Simmons replied 1 year ago.
Ahh...that is a problem.

They can use the Art 15 conviction as sole basis for the chapter.

Are they seeking an OTH? So you get a hearing? Or are they seeking a general discharge (so you get no hearing)?
Customer: replied 1 year ago.
Its still at the beginning stages. Either way I've been in for over 6 years so I'm entitled to a hearing if I wish. I fully intend to recieve a hearing. I love the army and have never been in any trouble before. This command may not be great but I've seen how professional other commands can be .
Expert:  P. Simmons replied 1 year ago.
Thanks

What happened at Art 15? Did you plea not guilty and they found you guilty?
Customer: replied 1 year ago.
There is a lot more information I need to disclose about the art15 that is very personal and don't wish to disclose on the website. More charges were on the article 15. I pled guilty to 2 out of the 5 charges. Sad thing ismy company commander wrote a completely fauls sworn statement about me to add an additional article 107 lying to a commissioned officer. Its my wish to personally speak with you about the entire situation, its just so much to type.
Expert:  P. Simmons replied 1 year ago.
Thank you sir

I can not speak personally (the rules of the forum require communications be here, written).

But I do believe I can answer your original question, if you want me to

Let me know

Customer: replied 1 year ago.
Article 15 charges are, 3counts of 107, lying to my 1st sgt, lying to my co, lying to my squad leader. the Iilligal purchasing and distribution of kratom article 92, and coinhabiting with a woman not my wife article 134. I indead did lie to my 1st sgt. Never lied to my squad leader or my co. I did buy the drug and give it to my wife and did coinhabit with her while we wernt married but while I was married to someone else. I was going through a divorce not by my choise, but i did fall in love with another woman. This woman was raped and it was very hard to work through. I lied to my 1st sgt to get two weeks of ordinary leave to support my girlfriend at the time ( said she was my wife) but never discused this with my co or squad leader for her personal information.
Expert:  P. Simmons replied 1 year ago.
Thanks

One more...you pled to 2 but were charged with 5...did they find you guilty of the use of the substance (even after you pled not guilty to it)?
Customer: replied 1 year ago.
They didn't find me guilty of using it but buying it and giving it to my wife.
Expert:  P. Simmons replied 1 year ago.
Thanks

Is your wife military??
Customer: replied 1 year ago.
No she's a civilian.
Expert:  P. Simmons replied 1 year ago.
Then what is the issue...it is not a crime for a civilian to use the substance (at least not according to the UCMJ)?

Do you recall how it was charged? Was it charged as 112a? Or 80 (attempt)?
Customer: replied 1 year ago.
Niether. Just got charged with buying it and giving it to her.
Expert:  P. Simmons replied 1 year ago.
Thanks

That may be the one redeeming fact in your otherwise, it seems, bleak case

Let me be clear...the Chapter process does NOT favor the soldier. Even if you get a hearing, the rules of evidence and procedure do not apply. And the standard of proof is not like at a court (where they must find you guilty beyond a reasonable doubt).

No...at a chapter it is a preponderance of the evidence standard. Practically speaking, you have to prove either you did not commit the misconduct in question, or that despite the misconduct, you should not be separated, or separated with the discharge they want to give you.


Chapter boards are tough.

But at least you get a board....if you had less than 6 years and they wanted to give a general, you would not even get a board.

Look...what you describe? You need a lawyer. A good one. It sounds like the command was playing "fast and loose" with the UCMJ. Kratom is NOT regulated by the FDA. It is not illegal under federal law. So it is not a crime to give to a civilian. It is a crime for you to ingest...but not for you to purchase for your wife. So they got that one wrong. Clearly.

It may be they made other mistakes.

You get a TDS lawyer for free...they will likely be energetic enough...that is great. They likely have no experience. That is bad (for you). If you hire a lawyer with experience in military law (ideally a retired Marine lawyer like myself...but not me) they can help you fight this. Again, it sure sounds like they are charing and convicting you of non crimes.

You can appeal this to the Army Board of Records Corrections...it may be they toss out the charge. But really the focus should be the chapter board. That is going to happen well before you can get the Army Board of Records Corrections to act

BOtXXXXX XXXXXne: I agree with you? The commander messed this up. Get a good lawyer to help you fight the board.


Let me know if you have more questions...happy to assist if I can

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27168
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.